Mr Corwynn Owens v Bynoe Community Advancement Cooperative Society Limited T/A Bynoe Cacs Ltd

[2016] FWC 5274

[2016] FWC 5274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Corwynn Owens
v
Bynoe Community Advancement Cooperative Society Limited T/A Bynoe CACS Ltd
(U2016/6273)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 9 AUGUST 2016

Unfair dismissal application – drug use in remote aboriginal community - whether drug testing policy had been amended by verbal direction – zero tolerance policy warranted in social context – employer reasonably set very high standard of conduct for employees.

[1] This decision concerns an application by Mr Corwynn Owens under s.394 of the Fair Work Act 2009 (“the Act”). Mr Owens seeks an unfair dismissal remedy in relation to his dismissal by the Bynoe Community Advancement Cooperative Society Limited T/A Bynoe CACS Ltd (“the employer”) (“Bynoe CACS”) on 13 April 2016. The employer provides a range of services to remote Aboriginal settlements, including the provision of tenancy housing and a range of cultural, economic and educational programs. Bynoe CACS employs some 40 permanent employees.

[2] Mr Owen’s eight month period of employment fell between 13 August 2015 and 13 April 2016. Ms Sharon Robinson, the Remote Jobs and Communities Program (“RJCP”) Administrator for Bynoe CACS, described Mr Owen’s position in the following (undisputed) terms in her written statement:

“Corwyn Owens was employed as a part time FaCE worker and a carpenter in our building team he was to share his time between the two. Corwynn’s responsibilities under the FaCE program were to work extensively with families that had students with poor attendance. He was to work with the students on a one to one basis in the class room, after school and was also involved in taking students on camps. He worked also with the Principals of both the State school and Christian school, PCYC, and Medicare Local. He did a reading program with the Normanton Child Care centre and Mums and Bubs . Corwyn also was involved in getting several students into boarding school and offered support for these students even to the extent we sent him down to Townsville to the boarding school for a week to help settle the students in. Corwyn did do a few days work with the building team but then complained that his back was too sore to do the work, so we found enough money in FaCE to allow him to do extra time with the FaCE team.” (sic)

[3] Mr Owens himself explained that his duties included engaging with disengaged young people in the community, who faced, or whose parents faced, serious drug and alcohol problems amongst other social difficulties. His role was to assist families struggling with their children and to work with the family and other State and Commonwealth agencies to re-engage the children and direct them into structured schooling.

[4] On 12 April 2016, along with 11 other members of staff, Mr Owens was subject to a random drug and alcohol test. That test yielded a negative result.

[5] However, the following day, 13 April 2016, Mr Owens, along with two other employees, was subjected to a further drug and alcohol test. Mr Owens claims he was tested once again for reasons that his employer had been led to believe some employees had been taking masking agents, so as to achieve a negative result on the prior random test.

[6] On this second random drug and alcohol test, Mr Owens yielded a positive result.

[7] As a consequence of his positive result to the drug and alcohol test, Mr Owens was dismissed from his employment with the employer, on a summary basis.

[8] Mr Owens contends that the decision to dismiss him was harsh, unjust and unreasonable, for reasons that he believed the employer’s decision was contrary to its own Behaviour and Code of Conduct Policy (“the BCO Policy”).

[9] The BCO Policy, which Mr Owens considered applied to his employment, relevantly states as follows:

“Bynoe CACS Limited does not support the use of alcohol or drugs outside working hours where the effects of these substances may result in impaired work performance. If you arrive at work under the influence of drugs or alcohol, you will be sent home for the day without pay. Repeated instances of arriving at work under the influence of drugs or alcohol will result in termination.”

[10] Mr Owens contends that if his employer had complied with its own policy he would not have been dismissed, but instead sent home for the day without pay, for reasons that it was his first offence.

[11] Mr Owens claims that he attempted to raise the employer’s non-compliance with its own policy with the CEO for the employer, Mr Fred Pascoe. Mr Pascoe was said to have responded that the BCO Policy had been changed and that a stronger stance had been adopted in relation to drug usage.

[12] Mr Owens contends that his dismissal also caused him to be unable to commence a position as a casual teacher’s aide at the local Gulf Christian College (until the school had implemented a new policy concerning the use of drugs and alcohol).

[13] Mr Owens employer - through Mr Pascoe - claimed that Mr Owens knew very well that if he recorded a positive result in a drug and alcohol test, his employment would be terminated. Mr Pascoe submitted that Mr Owens role was to preach against drug use and abuse, particularly amongst young children.

[14] That is, Mr Pascoe contended that Mr Owens job was to work with families and children from dysfunctional homes, in which drug and alcohol abuse were prevalent, and it was repeatedly discussed that employees themselves had to be drug and alcohol free, if they were going to be generally committed to dealing with what was described as rampant drug use in the community (which had historically concerned abuse of marijuana but had now exhibited issues with methamphetamines).

[15] Mr Pascoe contended that the written policy that Mr Owens relied upon had been amended verbally, and had been repeatedly addressed in team meetings prior to Mr Owens dismissal. Mr Pascoe contended that Mr Owens was present at the staff meetings and understood that any staff member, who tested positive for illegal drugs, would be terminated summarily. The verbal amendments to the drug and alcohol policy set out that it was only if the employee tested positive for alcohol that the employee was to be given three chances. But in cases where an employee tests positive for illegal drug usage, instant dismissal would follow.

[16] Mr Pascoe explained that the policy development in this respect was to bring the drug and alcohol policy into alignment with the drug and alcohol policy applied by the housing scheme (noting Bynoe CACS provides approximately 69 houses in the local community) and the State Government State Housing Community Program. These programs provide for the withdrawal of tenancy agreements, in circumstances where tenants are convicted of illegal drug possession. Mr Pascoe’s point was made bluntly: a tough message was needed in order for the community to understand the dangers of drug use.

[17] Ms Robinson, to whom I have referred earlier, claimed in this regard, in her written statement, that she convened a meeting on 19 January 2016, with the Remote School Attendance Strategy Team and the FaCE Team (which comprises some 14 people):

“This meeting was a catch up to let everyone know that I would be away the following week, about the policy regarding Drug and Alcohol Testing, wearing of uniforms, closed in shoes and about notifying the office if unable to come to work. This has been confirmed by a diary entry by one of the RSAS workers Ms Danielle Edwards.

I cannot be one hundred per cent sure that Corwynn was present at the meeting as it was an informal meeting no minutes were taken. All present at the meeting were informed that Bynoe was going to implement drug and alcohol testing randomly from then on. The Policy was already in place but had never been actioned. I informed everyone at the meeting that this would be occurring at any time for all employees and that if found testing positive for Drugs it would be instant dismissal and if found positive for alcohol they would be sent home and given their first warning.

There would have been all the other workers present in the room to confirm this conversation took place .Cherilee Douglas who is the supervisor for the RSAS Team can confirm this happened as she was present at this meeting I can furnish you with some names that I know were definitely there as I remember them asking questions about the testing.”

[18] Ms Robinson explained in her evidence that she had been asked to state the policy following a meeting of the Board of the Bynoe CACS.

[19] Evidence was led in the proceedings by Ms Cherilee Douglas, supervisor of the RSAS Team for Remote Schools - was that she attended the meeting on 19 January 2016, was aware of diary notes relating to that meeting, and recalled Ms Robinson referring, amongst other things, to a Drug and Alcohol Policy

[20] There was initially some confusion over the meeting. Ms Robinson had referred to a meeting in February 2016 in her initial one paragraph statement. But when requested to give close consideration to matters of detail, she revisited her evidence and discerned from diary references, that the meeting to which she referred, actually took place on 19 January 2016, as cited above.

[21] Mr Owens claimed that he had no recollection of any verbal amendment to the Drugs and Alcohol Policy, and in any event, he was absent from Normanton for the period 29 January 2016 – 7 February 2016 and 15 February 2016 and 19 February 2016. He also claimed to have been absent for some days in January 2016. None of these periods of absence correlate with the day on which Ms Robinson announced the new Policy on Drugs and Alcohol.

[22] The Bynoe CACS sign on book came into evidence for the employer and showed that Mr Owens had signed on for work at 7 AM on the morning of 19 January 2016 and signed off at 4:30 PM that day. Mr Owens did not dispute this evidence.

Legislative provisions

[23] A consideration as to whether a dismissal is harsh unjust or unreasonable in all the circumstances relies on taking account of a number of statutory matters, all of which are set out under section 387 of the Act.

[24] Section 387 of the Act provides as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Consideration

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[25] Mr Owens did not deny using cannabis. He claimed, however, that he used cannabis on the prior weekend, in conjunction with the consumption of alcohol at a football function.

Senior Deputy President Richards: “So as I understand your evidence then, you’re saying that on the weekend prior to being tested on the 13th, sorry, on the weekend prior to being tested on the 12th, you had become intoxicated at a football function and you indulged in marijuana usage – then”

Mr Owens: “yeah”

Senior Deputy President Richards: “and you say you didn’t take any marijuana from that time onwards”

Mr Owens: “yep”

[26] I am satisfied on the evidence of Ms Robinson and Ms Douglas that the employer’s Drug and Alcohol policy was reformulated and restated at the meeting of 19 January 2016.

[27] On the evidence I have heard, on the balance of probability, Mr Owens was aware of the stated policy announced on 29 January 2019, and its implications. The policy is a zero tolerance policy and provides for summary dismissal upon a positive result through saliva testing. Mr Owens attended work on the day of the policy statement by Ms Robinson and must reasonably be taken to have been present at the meeting. Mr Owens gave no evidence that he was otherwise likely to have been distracted or attending to some other activity.

[28] Mr Pascoe also explained that an apprentice had been dismissed three weeks prior to Mr Owens dismissal, for reasons of testing positive to a drug test in the workplace. The matter had been an issue of some controversy in the local community and Mr Owens would rightly have appreciated the circumstances. Mr Owens, for his purposes, only indicated that he had heard rumours and no more about a drug policy being implemented. Mr Owens also contended that he was unaware that the apprentice had been dismissed for failing a drug test:

Mr Pascoe: “does Mr Owens recall, that about 3 weeks earlier an apprentice had been dismissed for failing a drugs test?”

Mr Owen: “again, I have no knowledge of that, I didn’t know up until when I tested positive too, that he had been terminated”

[29] However, based on the evidence provided by both parties about the size of Normanton, about the way in which the community shared information, and Mr Pascoe’s evidence that the matter had been controversial, I find it unlikely, indeed improbable, that Mr Owens was not aware of this earlier dismissal of a colleague, for failing a drug test in the workplace. This is also relevant to Mr Owens’ evidence in relation to his knowledge of the drug policy. This is because he would have been aware of this colleague being dismissed for failing a drug test administered by the employer, and so therefore, it is likely he had a deeper understanding of the employer’s drug policy than he acknowledged in his evidence.

[30] Mr Pascoe had referred to the need for the organisation to maintain credibility following Mr Owens’ positive test, in a small community, where people talk. Mr Owens for his part acknowledged this, but maintained Bynoe should have kept the results confidential and alleged that his positive test result had been “leaked” to the community and this was against the employer’s confidentiality policy.

[31] Mr Owens referred to a drug policy document that the employer had kept on record, which I have set out earlier. Mr Owens had no knowledge of the policy prior to his dismissal. He only became aware of the policy after his dismissal, when he enquired about the existence of a written policy from the HR Officer. Mr Owens was therefore not acting under the presumption of the application of the former written policy. In any respect, I consider the conduct of Ms Robinson in setting out the Drug and Alcohol Policy on 29 January 2009 to be the relevant Policy which should have guided Mr Owens’ conduct.

[32] The context of the employer’s expectations for its employees is important in considering whether there was a valid reason for Mr Owens’ dismissal. Mr Pascoe, a particularly impressive witness and leader, set out the scope of the problems facing the local community, which demanded the very substantial penalty imposed upon Mr Owens (and others), as a step towards communicating the consequences of drug use in the community and ensuring that the Bynoe CACS reflected those values unambiguously. Mr Pascoe noted that the role of the employer in the community was such, that it demanded a high level of integrity from its employees, otherwise it might be seen as hypocritical, and become ineffective in fulfilling its variety of social and welfare functions. Again, it is important to position Mr Owens’ role within a community that suffers from drug and alcohol-driven dysfunction:

Mr Pascoe: “would you agree, that the kids that we deal with, 99.9% come from homes where their parents or their families are indulging in alcohol and or drugs?”

Mr Owens: “um yeah that’s true, most of the families we work with, either the parents or some family member will indulge in alcohol or drugs”

[33] When all the relevant circumstances are considered, I have reached the view that there was a valid reason for Mr Owens’ dismissal.

Whether the person was notified of that reason

[34] Mr Owens was dismissed summarily and was therefore not notified of the reason for his dismissal, until such time as he was dismissed.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[35] Again, Mr Owens was dismissed summarily and any explanation he had for his conduct was not taken into account given the policy position of his employer.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[36] The circumstances of a summary dismissal did not give rise to a situation in which the employer allowed for a support person to assist in the course of discussions relating to the dismissal.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[37] Mr Owens’ dismissal did not relate to unsatisfactory performance. Mr Pascoe spoke strongly about Mr Owens’ capacity to perform his job effectively and spoke as someone who had known Mr Owens since his (Mr Owens’) childhood.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[38] The Bynoe CACS employees some 40 permanent employees and runs some quite considerable government programs (including a 240 strong work for the dole program). The size of the enterprise did not reasonably contribute to the procedures followed in effecting the dismissal of Mr Owens.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[39] The Bynoe CACS did have an HR officer at the time of the dismissal and it cannot reasonably be said that Mr Owens dismissal was impacted upon because of the absence of such skills.

Any other matters that the FWC considers relevant

[40] The policy enacted by the employer produced a harsh outcome upon Mr Owens, and the dismissal itself was effected with little regard to procedural richness. Further, the policy announcement on 19 January 2016 was conveyed verbally to employees. It may have been to the employees’ further benefit to have set that policy out in writing as well. It was suggested that this was the task of the HR Officer (who has now left the CACS employment) but had not been completed at the time of Mr Owens’ dismissal.

[41] That said, in the acutely sensitive environment in which he works, Mr Owens’ employer reasonably set a very high standard of conduct for its employees, and demanded compliance with its stated policies.

Conclusion

[42] I have already noted that there are elements of harshness in Mr Owens’ dismissal. But overall, when the policy the Bynoe CACS is considered in the whole context, I consider that its reasoning to have been sound and indefensible and that Mr Owens was not dismissed harshly, unjustly or unreasonably.

[43] As a consequence, Mr Owens application under s.394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Corwynn Owens.

Mr Fred Pascoe for Bynoe Community Advancement Cooperative Society Limited T/A Bynoe CACS Ltd.

Hearing details:

By Video Link

Fair Work Commission Brisbane and Normanton (QGAP)

3 August 2016

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